Constitutional enshrinement of human rights is essential for Australians.
In response to approaches from the Australian Human Rights Commission Attorney-General Mark Dreyfus has recently announced an Inquiry into Australia’s Human Rights Framework and among other things has charged the Parliamentary Joint Committee on Human Rights with considering whether the Australian parliament should enact a federal Human Rights Act.
Most Australians will not remember that we ever had a “Human Rights Framework” but such a thing did exist briefly under the Rudd/Gillard governments. It arose as a result of a National Human Rights Consultation, chaired by Father Frank Brennan AO and was distinguished by the fact that it did not include a Human Rights Act or proposals to enshrine human rights in the Constitution. In adopting the Framework and excluding the possibility of a Human Rights Act for Australia the Labor government relied – shall we say, selectively – on on one of the views expressed by the Committee running the Consultation that
Australia does not have the human rights problems apparent in many other countries and that Australia is, in general, a wonderful country to live in. The majority of people living here feel the system is not broken, and they do not foresee their human rights ever being curtailed. This situation leads many Australians to be sceptical about human rights and to calls for human rights legislation.
That was in 2009. Wind forward to 2023 and it is now quite apparent that not only does Australia stand out as a country with quite severe human rights problems but Australians have come to see that it does. Australians have seen their human rights curtailed in over 80 pieces of legislation since 2001 which have limited our freedom of expression, freedom of assembly and protest, freedom of information, freedom of the press, whistleblower protections, rights to open trial and the presumption of innocence, rights to not be detained without charge, rights to privacy, and the public’s right to know of possible misconduct and illegal conduct by parliamentarians and government officials. Little wonder then that the Human Rights Law Centre has reported that 83% of Australians on survey in 2021 stated that they want “a document that sets out in clear language the rights and responsibilities that everyone has here in Australia” and 74% agree that “a charter of human rights would help people and communities to make sure the government does the right thing” – meaning that the government does not abuse the rights of Australians.
Support for a human rights charter has been growing over the last decade. Indeed it was never low, even back in the days of the Brennan Committee’s Consultation. The fact is that
of the 35,014 submissions the Committee received, 32,091 discussed the option of a charter of rights or a human rights Act. Of these, 27,888 were in favour and 4,203 were opposed.
But despite the overwhelming support for a charter, the government (and the Brennan Committee, for that matter) chose to ignore the vast majority of submissions from Australians and gave weight instead to the opinions of the small proportion who objected to the idea of enshrining human rights in domestic law. The specious claim by the government in support of its decision not to introduce a charter of rights was that “many Australians remain concerned about the possible consequences of such an Act”, notwithstanding the plain fact that far more Australians remained concerned about the possible consequences of not having such an Act.
In the years since the Brennan Consultation Australians have become even more concerned, as well they might when they see abuses of the rights of refugees, the abuses of vulnerable Australians in cases like the Robodebt scandal and the abuse of Indigenous prisoners and young Australians in centres like the Ashley Youth Detention Centre in Tasmania, the Banksia Hill Detention Centre in Western Australia, and the Don Dale Detention Centre in the Northern Territory. They are concerned to the point of deep embarrassment when confronted with the results of Universal Periodic Reviews of Australia’s human rights record by the United Nations Human Rights Council and Committees which show that Australia has become a notorious serial abuser of human rights. We have sunk to this level in the eyes of many other nations because we have almost no laws which prevent this abuse.
Indeed it is a matter of High Court record that executive governments in Australia may not be constrained by the much vaunted “rule of law” in knowingly authorising themselves to abuse human rights by means of “executive statements”. In other words, while we are a signatory to all seven core human rights covenants and conventions under international law but have not comprehensively enshrined the rights in these instruments in domestic law, a federal executive government does not even need to seek the permission of the parliament if it wishes to make an administrative decision that runs counter to expectations that those rights in international treaties will be upheld in Australia. For instance, in 1997 the Howard government set aside the legitimate expectations of Australians that their rights would be upheld when “the Attorney-General and the Minister for Foreign Affairs issued an Executive Statement to the effect that the act of entering into a treaty does not give rise to legitimate expectations that could form the basis for challenging an administrative decision.” This accords all power to the executive, regardless of what the people may expect and what parliaments themselves may have ratified. It makes a mockery of the assertion that our Constitution provides us with a system of “responsible government” in which the executive government is supposedly accountable to parliament. When it comes to human rights, governments can now quite easily disregard the parliament – and they do.
In the 2020s Australians are becoming much more nervous about loss of rights, particularly with the advent of the AUKUS agreement which has awakened more Australians to the fact that they have no right to a say in whether Australia goes to war or not. Because Australian law does not enshrine the vast majority of human rights that in principle should be available to us under international law, these rights which are otherwise acknowledged in official government policy to be “universal, indivisible, inalienable, inviolable and the common entitlement of all humans” are in practice not available to Australians.
However, if we had a constitution that enshrined all the rights in the treaties and declarations that we have signed, we would be better placed in ongoing efforts to avoid war and certainly more capable of ensuring that our governments do not start one when it is not consistent with the will of Australians as represented by the parliaments they elect.
The governments we have elected since World War II are fully aware of this. They are entirely aware of the fact that if the full suite of human rights many other nations enjoy under international law were extended to Australians then war propaganda such as we have suffered recently in media campaigns like the Sydney Morning Herald's Red Alert series would be illegal. For this reason Australia has for several decades withheld its assent to the particular element of the International Covenant on Civil and Political Rights that would help us reduce the chance of war – Article 20.1: “Any propaganda for war shall be prohibited by law.”
We might expect that the Albanese government will maintain Australia’s reservation about Article 20. This is one reason why human rights are essential in the Constitution, rather than in legislation. Unless these rights are in the Constitution the parliaments we elect (and the High Court for that matter) have little if any chance of protecting us from abuse of power by an executive government.
We would be better placed than we are now to protect ourselves if we had a Human Rights Act and if that is all Australians are offered after Mark Dreyfus finalises his review it should be grabbed with both hands by the parliament. But the fact remains that unless and until we have a Constitution which enshrines our human rights and the government’s obligations to us our chances of resisting being dragged into a war we don’t want and can’t win are likely to be nil.
This is a summary of part of a new book, The People’s Constitution: the path to empowerment of Australians in a 21st century democracy by Bronwyn Kelly. Readers can order the book here.